Citation Nr: 0944644
Decision Date: 11/24/09 Archive Date: 12/04/09
DOCKET NO. 06-26 542 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent
for diabetes mellitus Type II with early nephropathy.
2. Entitlement to an initial rating in excess of 30 percent
for posttraumatic stress disorder (PTSD), to include the
issue of entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. L. Wallin, Counsel
INTRODUCTION
The Veteran served on active duty from May 1967 to March
1970.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from August 2004 and November 2004 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Winston-Salem, North Carolina. The RO, in
pertinent part, awarded service connection for diabetes
mellitus with a 10 percent rating and PTSD with a 30 percent
rating, both effective from April 2003.
Because the Veteran is challenging the initial rating
assigned for PTSD and the record raises assertions that he is
unemployable because of his service-connected PTSD, the
determination as to whether he is entitled to TDIU, including
the effective date for that award, is part and parcel of the
determination of the initial rating for the PTSD claim. Rice
v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board
has jurisdiction over this matter, the claim for TDIU, as
well as the claims for PTSD and diabetes mellitus, are
addressed in the Remand portion of the instant decision and
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the Veteran if further
action is required.
The Board notes that additional records, to include a private
medical report, an affidavit of the Veteran, and lay
statements from friends and family, were submitted to the
Board in August 2009. The additional evidence was submitted
beyond the 90-day period allowed by regulation following the
certification and transfer of the record to the Board.
However, as good cause was shown, i.e. the recent
availability of the evidence, and since the Veteran waived
initial RO adjudication of the newly submitted evidence, the
Board shall accept this evidence in disposition of the claims
on appeal. 38 C.F.R. § 20.1304(c).
REMAND
The Veteran, in an April 2009 statement, that he continued to
receive treatment at both Raleigh and Durham VA Medical
Centers for his diabetes and that VA should obtain those
records. Review of the record shows that the most recent VA
medical records were dated in November 2007. Accordingly,
the most VA treatment records are not present in the file and
thus the current status of the Veteran's diabetes mellitus is
not clear. The RO should obtain these records and associate
them with the claims file.
The Veteran has also filed a claim of entitlement to an
initial rating in excess of 30 percent for PTSD. A
determination has been made that additional evidentiary
development is necessary. Accordingly, further appellate
consideration will be deferred and this case remanded for
action as described below.
A preliminary review of the record reveals that there appears
to be pertinent VA medical records outstanding that have not
yet been added to the claims file. Specifically, the Veteran
repeatedly maintained that he received treatment from the Vet
Center in Florida beginning in March 2003. The only record
from the Fort Lauderdale Veteran Center associated with the
claims folder is a September 2007 letter, which confirms the
Veteran sought treatment from them beginning in March 2003.
The underlying treatment records dated from March 2003 to the
present must be obtained upon Remand. 38 C.F.R.
§ 3.159(c)(2).
A remand is also necessary in order to afford the Veteran an
additional VA examination in connection with this claim.
38 U.S.C.A. § 5103A(d). In the Veteran's August 2009 Written
Brief Presentation, he contends that his PTSD has worsened
in severity since the last VA examination in November 2004.
Specifically, he asserts that PTSD has rendered him totally
occupationally and socially impaired due to symptoms to
include, but not limited to, social isolation, difficulty
maintaining relationships, crowd avoidance, impaired impulse
control, poor hygiene, continuous panic attacks and
depression, impaired impulse behavior, memory loss,
disorientation, obsessional rituals, suicidal ideation, and
self medicating with alcohol. In support of these assertions
he submitted a December 2008 report from Dr. HJ and lay
statements, which suggest a deterioration in the Veteran's
mental status. However, the Board can not ascertain to what
extent the PTSD has increased in severity, if at all, without
a new VA examination. The Board is not free to substitute
its own judgment for that of such an expert. See Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991).
Further, where there is evidence of a material change in the
Veteran's condition or as in the instant case, when the
Veteran asserts that the service-connected disability in
question has undergone an increase in severity since the time
of his last VA examination, the prior VA examination report
may be inadequate for rating purposes and a new VA
examination is required. 38 C.F.R. § 3.327(a);
See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997).
Moreover, there is also some confusion in the record as to
the extent of disability from the service connected PTSD, as
opposed to the nonservice-connected co morbid diagnoses of
alcohol dependence, depressive disorder, and alcohol mood
related disorder. Such clarification must also be sought
upon Remand.
Lastly with respect to the PTSD claim, as it is essential in
the evaluation of a disability, that each disability be
viewed in relations to its history, and in light of the
outstanding evidence of record, an additional VA examination
is also necessary. 38 C.F.R. § 4.1; Schafrath v. Derwinski,
1 Vet. App. 589 (1991). Copies of all pertinent records in
the Veteran's claims file or, in the alternative, the claims
file, should be made available to the examiner for review.
Any ongoing VA medical records pertinent to the issue should
also be obtained.
38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v.
Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in
constructive possession of the agency, and must be obtained
if the material could be determinative of the claim).
As noted in the Introduction, the Veteran has raised the
issue of TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001) (Once a veteran submits evidence of medical
disability and additionally submits evidence of
unemployability, VA must consider total rating for
compensation based upon individual unemployability). The
Court has held that, when evidence of unemployability is
presented in cases such as this, the issue of whether TDIU
will be assigned should be handled during the determination
of the initial disability rating assigned at the time
disabilities are determined to be service connected. See
Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In Rice,
the Court determined that there is no freestanding claim for
TDIU. Id. at 451.
The Board has determined that further action by the RO is
necessary prior to disposition of the claim. Therefore, this
aspect of the Veteran's initial claim for compensation
benefits should be addressed on remand. That is, the AOJ
should address whether TDIU is warranted either on a
schedular or extraschedular basis. With regard to whether
TDIU is warranted on an extraschedular basis, the RO would
have to refer the matter to the Director of Compensation and
Pension. 38 C.F.R. § 4.16(b).
As these matters are being remanded, the agency of original
jurisdiction should take efforts to ensure that it provides
the Veteran with notice that meets all due process
requirements, including those addressed by recent cases from
the Court.
Accordingly, the case is REMANDED for the following action:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38
U.S.C.A. §§ 5102, 5103, and 5103A (West
2002 & Supp. 2009) are fully complied
with and satisfied, with respect to
whether the Veteran is entitled to TDIU.
See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006)
2. The RO should obtain any outstanding
VA and/or private treatment records not
on file pertaining to treatment of the
Veteran for both Diabetes Mellitus and
PTSD. Specifically, the RO should obtain
(a) any outstanding records from the Vet
Center in Fort Lauderdale, Florida, dated
from March 2003 to the present and (b)
ongoing records of treatment from Raleigh
and Durham VA Medical Center and clinics
dated after November 2007. The RO should
request that the Veteran complete and
return the appropriate release forms so
that VA can obtain any identified
evidence relating to such treatment. All
requests for records and their responses
should be clearly delineated in the
claims folder.
3. After the receipt of any additional
medical records obtained in accordance
with this remand, the RO should schedule
a VA psychiatric examination to ascertain
the current severity of the Veteran's
service connected PTSD. The Veteran's
claims folder must be available to, and
reviewed by, the examiner in conjunction
with the examination. The examiner
should indicate that the claims folder
was reviewed.
Following review of the claims file and
examination of the Veteran, the examiner
should offer an opinion regarding the
degree of functional impairment caused by
PTSD, as opposed to any other psychiatric
disorders found, to include, but not
limited to, alcohol dependence,
depressive disorder, and alcohol mood
related disorder. The examiner should
include a Global Assessment of
Functioning score for the PTSD alone, if
possible. The examiner should also
comment on the impact that the Veteran's
PTSD has on his ability to obtain and
maintain gainful employment. All
pertinent clinical findings and the
complete rationale for all opinions
expressed should be set forth in a
written report.
4. After the receipt of any additional
medical records obtained in accordance
with this remand, the RO should schedule
a VA examination to ascertain the current
severity of the Veteran's service
connected Diabetes Mellitus. The
Veteran's claims folder must be available
to, and reviewed by, the examiner in
conjunction with the examination. The
examiner should indicate that the claims
folder was reviewed.
5. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claims for
TDIU and increased initial rating for
Diabetes and PTSD in light of all
pertinent evidence and legal authority.
Adjudication of the claim for a higher
initial evaluation should include
specific consideration of whether "staged
rating" (assignment of different ratings
for distinct periods of time, based on
the facts found), is appropriate. See
Fenderson v. West, 12 Vet. App. 119, 125-
126 (1999).
6. If the benefits sought on appeal
remain denied, the RO must furnish to the
Veteran and his representative an
appropriate supplemental statement of the
case that includes clear reasons and
bases for all determinations and affords
him an appropriate time period for
response before the claims file is
returned to the Board for further
appellate consideration.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The Veteran need take no action unless
otherwise notified. VA will notify the Veteran if further
action is required on his part.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States
Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2009).
______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs